Appeals cases don’t happen very often in the practice of divorce law. Most of the time, even in the most hotly contested cases, the parties are done arguing either when they reach an agreement (which they do, in probably 95% of cases) or the judge makes a decision for them.
Most people know that decisions at the circuit court level can be appealed. It’s a relatively rare occurrence, mostly because it’s time consuming and incredibly expensive (especially when you factor in the cost associated with litigating your divorce all the way through the circuit court leading up to the appeal). Still, in Virginia, you can appeal, after the circuit court, first to the Court of Appeals of Virginia and then, in some cases, to the Supreme Court of Virginia.
How do you appeal a divorce case in Virginia, and what are the standards?
The main risk of litigating your divorce case (aside from the time and money you will spend doing it) is that the judge will order something you don’t like. When it comes to a divorce and custody case, as you already know, the stakes are incredibly high; a verdict that goes against your wishes can dramatically alter your life.
So, what happens if the worst happens? You appeal.
But you can’t just appeal in any old case; you have to have a reason. And your reason can’t be, “the judge got it wrong.” In Virginia, you have an automatic appeal to the Virginia Court of Appeals—but that doesn’t mean any case can be appealed. To have an appeal, you have to appeal based on an error of law, as opposed to an error of fact. There has to be some, specific, concrete way the judge’s verdict violated existing statutory or case law. That’s a pretty difficult standard to meet. It’s not enough to say, “Obviously, the judge didn’t fully understand the case.” That’s probably a mistake of fact; a mistake of law is a much more concrete thing.
If you don’t have a mistake of law, you can’t appeal.
If you do have a mistake of law and the judge finds against you, you can petition to the Supreme Court to appeal your case there. In Virginia, the Supreme Court is as high as you can go. Unlike the Court of Appeals, you don’t have an appeal of right here; in order for the Virginia Supreme Court to hear your case, you’d petition and the court would have to grant it. Then, it will hear your appeal. Otherwise, you’re stuck with the lower court’s decision.
Anyway, all of that to say that going to court on appeal is really big deal, and it’s not something that most attorneys get to do all that often. Winning at the appeals level is an even bigger deal.
One of our attorneys, Shannon D. Lemm, recently won on appeal. Back in October, she won pretty big.
Here’s (basically) what happened. Husband appealed, arguing that the trial court shouldn’t have been allowed to impute income to him.
What does it mean to impute income in a divorce action?
When you “impute” income to a person, you force them to take responsibility for earning what they are capable of earning—even if that’s different than what they are currently earning.
This happens a lot in divorce cases. In this case, husband was in and out of work. When he had words with a project manager at his last job (in October of 2012), he quit. After that, he never went back to work.
The question is whether he was voluntarily unemployed—which is different than when a person is unemployed due to an injury or a lack of opportunity. The court differentiates between when a person chooses not to work, even though he may be able to do so, and when a person is actually not able to work. In this case, the lower court found that income could be imputed to him.
In its simplest terms, that means that the court can find him responsible for earning what he was earning before (in his case, $19 per hour, forty hours per week), even though he’s not earning it now.
What is the court looking for when it looks at a trial court’s decision that has been appealed?
Different cases present all sorts of different issues, and have different standards associated with them.
In a case that has been appealed, the case is viewed in the light most favorable to the prevailing party. (That’s from a case from 2003 called Congdon v. Congdon, but, don’t worry, there won’t be a test on this later.) Basically, that just means that, if you won at the lower court level, you have a distinct advantage.
The burden is on the party who lost in the lower court to prove that their assignments of error are valid and would warrant the appeals court reversing (changing the ruling) or remanding (sending the case back down to the lower court to be re-heard in light of the views of the appeals court) the case to the lower court. This is a standard that applies to ALL cases on appeal. Since husband appealed this case, because he didn’t believe that income should have been imputed to him, it was already a bit of an uphill battle for him.
In this case, because husband’s main concern was that he shouldn’t have been imputed income (since he wasn’t voluntarily unemployed), we had to look at another case that applies to spousal support. In Brooks v. Brooks, a case from 1998, the court held that the trial court has “broad discretion” when it comes to awarding spousal support. In fact, the trial court’s discretion is so broad, that the ruling from the lower court will not be overturned unless, somehow, the trial court abused that discretion.
As you can probably imagine, this is a tough standard to meet, too. Besides that, whether or not husband was voluntarily unemployed is a factual determination, and, as we already discussed, the Court of Appeals doesn’t hear (or even re-hear) factual allegations. At the Court of Appeals level, the only consideration is mistakes of law.
The court cited another case, Srinivasan v. Srinivasan, from 1990, where the court held that income may be imputed to a party when a spouses “choose[s] a low paying position that penalizes the other spouse.”
So, anyway, long story short—Shannon won! It was a triumph for our client, who is disabled, and was able to get spousal support from her husband, even though he chose not to work.
What about attorney’s fees?
That’s a great question! If you’re feeling, like we do, that this woman’s husband ought to pay for her attorney’s fees because of the mess he made fighting over spousal support, you’re probably wondering what happened next. The Court of Appeals found that wife is entitled to reasonable amount of attorney’s fees and costs related to the appeal, and the case was remanded to the trial court so that an award could be made. We don’t know yet (or, at least, at the time of this writing) what that award will be, but it’s a major win all the same.
Congratulations to Shannon Lemm and her paralegal, Tammy Womack, whose hard work and dedication really paid off.
To schedule a consultation with Shannon, who practices exclusively in our Newport News office and handles cases all across the Peninsula, give our office a call at (757) 425-5200.